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Cadder round 2: Judgment applies beyond the Police

It has been reported that Sheriff Murphy has delivered a judgment at Glasgow Sheriff Court that could potentially through Scottish Criminal Procedure into total chaos again. Sheriff Murphy has ruled that the protections afforded to suspects being interview by the Police following the case of Cadder v HMA in the UK Supreme Court last year extend beyond the police. Effectively the judgment covers all agencies interviewing persons where criminal charges might result.

Some examples of agencies that would be included are the UK Border Agency, Customs, the DWP and local authorities. This could have huge ramifications in everything from those entering the UK through Scotland’s ports and airports illegally to the person claiming housing benefit to which they are not entitled. Even being interviewed by the TV Licensing authorities for not having a TV licence would be covered.

Last year the Scottish Government introduced emergency legislation to the Scottish Parliament to give suspects being interviewed by the police the right to access following the judgment of the United Kingdom Supreme Court in the case of Cadder v HM Advocate. In that case the court held that the ability of the police to detain and question a person for up to six hours without the option of consulting a solicitor breached their right to a fair trial guaranteed by the European Convention of Human Rights. The concerns related to self-incrimination and the Crown using confessions in evidence where the suspect had not been able to seek legal advice.

The decision of the Sheriff today is not a binding upon other Sheriffs. However, it is likely to have persuasive authority. Indeed, it would be foolish of the Scottish Government not to further amend the Criminal Procedure (Scotland) Act 1995 to extend the right of access to legal advice beyond those being questioned by the police. There is no discernable reason as to why, in light of Cadder, the High Court of Justiciary or the UK Supreme Court would decide any differently.

This right is one that has existed in England and Wales since 1985 and covers other agencies such as the UK Border Agency and Customs.

The decision of the Sheriff could potentially harm thousands of prosecutions for offences such as benefit fraud being brought in Scotland by the COPFS. It is hoped that the Government’s response will not be as rushed or as flawed as it was last October.

The Scottish Information Commissioner should be issuing a decision in the near future regarding the provision of documents and material used by the Government during the decision making process that resulted in the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010.

Lord Carloway is currently conducting a review of criminal procedure and evidence in Scotland following the judgment from the UK Supreme Court last year. More information on the Carloway Review can be found at http://www.carlowayreview.org

A copy of the Sheriff’s Judgment and the Commissioners Decision Notice will be linked to from this site when they are made available.

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